Disciplinary Meeting

[unclebulgaria67]

Up to Newlyn to take forward, as he is going through this current situation. Not sure there is any point in further debate, unless there is new information.

 

Both sides of the argument have been put, so Newlyn can work out what he needs to do.

[BazzaS]

What is the untruth?.

Why is the harm "serious"?.

 

 

The harm could be serious, as the behaviour of the manager could be doing psychological damage to Newlyn, due to constant nature of negative undermining comments being made to Newlyns colleagues.

 

Newlyn needs to gather evidence and submit a formal grievance against this manager to HR ASAP, but in doing so should be aware that colleagues who have witnessed the managers behaviour might not be willing to go on record.

 

Serious harm to NewLyn's psychological state won't cut it. For it to be defamation the serious harm must be to the reputation.

"1Serious harm

 

(1)A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant."

 

Remind me : What is the untruth?

[unclebulgaria67]

Psychological state might cause poor performance issues which cause long term harm, beyond the current employment e.g loss of confidence.

 

Regarding truth or not, that has to be tested by Newlyn, based on him providing evidence that the performance issues are not as the manager has mentioned to colleagues.

 

I am not saying there is any defamation case here, but putting a counter argument.

[king12345]

My two pennies, mainly echoing what others already said:

Given your length of service, gossip that if used in evidence would put your colleagues against you, cocky manager criticising your performance, meetings with lawyer and the fact that you want to keep your job, the best course of action is to do your job to the best of your abilities.

 

The fact that 2 months went by and nothing happened is a good sign; if your manager wanted you out he would have got you out by now.

Silly question: could it be that the manager's style of dealing with ALL employees has been taken as discrimination/victimisation by you?

In other words, is he treating you differently from everyone else?

 

If I were you I would not give him any excuse to complain, by doing the job properly.

Also, in front of other people so there's no misunderstanding about what it is said, I would ask him if he's happy with a specific task and if not ask advice to improve.

 

This would show that he's in charge (most likely that's all he wants) and you're not a troublemaker holding an axe to grind.

Maybe you don't like being a brown nose, but sometimes a compromise must be reached.

 

I would suggest to go on the attack if you had worked for 20 years in the same company and never had a problem, but this is not the case.

If you want to keep your job you have to do your job and keep the manager sweet IMO.

[sangie5952]

Psychological state might cause poor performance issues which cause long term harm, beyond the current employment e.g loss of confidence.

 

Regarding truth or not, that has to be tested by Newlyn, based on him providing evidence that the performance issues are not as the manager has mentioned to colleagues.

 

I am not saying there is any defamation case here, but putting a counter argument.

 

But the problem is that you are actually arguing an entirely different case in an area of law that would be just as problemmatic - probably more so.

If you are arguing actual mental harm, then that is covered within personal injury law.

And that opens a whole new can of worms, because there is still no evidence that psychiatric harm has been done, and the law is clear that "hurt feelings" are not sufficient to claim injury.

 

 

But that would open another potential question about whether the OP had pre-existing mental health problems; and the subsequent very public argument about that would certainly do the OP far more harm. At the same time, opening a discussion about mental health problems brings into question the OPs perspective on things - in terms of whether they may be reacting in an unreasonable manner.

 

And that all ignores the fact that there is not yet any real evidence that the manager had done anything wrong. I'm sorry, but the OP works in a cut throat environment that has no reputation for being touchy-feely.

And is never going to get one. All we have evidence of here is that the manager, quite correctly, had held two meeting with an employee at which the employee was informed that there are concerns about his performance.

 

 

Without needing to take sides, the objective fact is that the manager has acted quite correctly in that.

Absolutely everything else is hearsay.

And there appears to be no evidence that the OP has either accepted the assessment and worked to address the managers concerns; nor that they have done anything else such as raise a grievance against the manager and evidence that their performance is fine. Whinging with your colleagues for a couple of months is not the appropriate process.

 

The OP is simply throwing around idle threats on an anonymous website.

Threats that, if they understood the implications financially, they would realise make them sound foolish.

 

 

If they have been doing the same at work, then that would account for the presence of the lawyer in meetings.

And it would also make them even more of a target.

 

 

Even assuming that there is no truth to the allegations of poor performance, the employer has a legitimate reason to wish to terminate the eemployment of a potentially litigious and problematic member of staff before they reach the two year mark.

[landlor]

Thanks for replies everybody. A few clarifications. The solicitor that I have mentioned was actually staff of the firm and looks at legal side of things. It is common for reputed city based firms to involve legal expert in all matters and follow the process. So my manager or employer is not being any extra cautious/right by having a legal expert at the time of discussion.

 

Second, I do agree after reading some of the points that pushing it as defamation case will not be easy. But pushing it as a case of breach of confidence should not be difficult in Employment tribunal, with the kind of proof I have. Besides this I have asked my colleagues and they are ready to stand by me given they can be kept anonymous for internal hearing. The HR is not going to side with my manager is my belief and so have they advised. I have told that I have several evidences of my manager mistreating me on emails and shouting at me in public. On my performance appraisal form where I mentioned on such gross instance of shouting at me in public and the manager has naively admitted to that with an excuse. I have shown the solicitor one such email while I was carrying print out of four such gross treatment proofs.

 

I have not raised it as grievance still as I want to do that only after I am sent a notice for hearing. That way I will be able to extend my job stint to extent possible.

[BazzaS]

 

 

Second, I do agree after reading some of the points that pushing it as defamation case will not be easy. But pushing it as a case of breach of confidence should not be difficult in Employment tribunal, with the kind of proof I have.

 

You've not mentioned being discriminated against, at least not being discriminated against due to a "protected characteristic".

 

Given you don't have 2 years service : how are you going to get an employment tribunal to consider if there was a breach of "mutual trust and confidence"?

 

No discrimination based on a protected characteristic, and less than 2 years service : no tribunal.

There are a few other (but still very limited) circumstances where the "must have 2 years service" is disapplied : why do you think your case meets those circumstances?

 

https://formfinder.hmctsformfinder.justice.gov.uk/t420-eng-2016.02.24.pdf

[BazzaS]

 

No discrimination based on a protected characteristic, and less than 2 years service : no tribunal.

There are a few other (but still very limited) circumstances where the "must have 2 years service" is disapplied : why do you think your case meets those circumstances?

 

This will rule out the tribunal looking at unfair dismissal.

 

To avoid the tribunal being able to look at wrongful dismissal (and/or breach of contract) : the employer need only pay you for your due notice period.

[landlor]

This will rule out the tribunal looking at unfair dismissal.

 

To avoid the tribunal being able to look at wrongful dismissal (and/or breach of contract) : the employer need only pay you for your due notice period.

 

If at all they admit that there has been a breach from their side, they then will less likely terminate my job. I know I may/will still get the same payout when done through ET but that's not what employers prefer.

 

I offered them to terminate my job just plain ( so that my insurance will cover me ) but HR said that they must have a reason for termination. Until now the manager has not been able to prove my poor performance based of job completion time/standard etc. However he has been able to get a poor feedback ( through collusion ) from managers of other team that we interact with. If there was a genuine performance issue so much so as to cause a termination, there would have been many evidences.

 

The solicitor was saying that manager and other team have lost trust and confidence in me. So essentially they will use the implied duty of Trust and Confidence to justify my termination. That's when I would like to cite misdeeds of my manager, with evidences, as a bigger instances of loss of Trust & Confidence.

 

There is no protected characteristic that I have advantage of.

 

I offered the solicitor to terminate my job just plain ( so that my insurance will cover me ) but the solicitor (HR) said that they must have a reason for termination. Until now the manager has not been able to prove my poor performance based of job completion time/standard etc.

 

 

However he has been able to get a poor feedback ( through collusion ) from managers of other team that we interact with. If there was a genuine performance issue so much so as to cause a termination, there would have been many evidences.

 

 

There have been three meetings and no proof at all. In fact I was able to disprove ALL of his allegations of me not following his instructions.

 

 

They have since then stopped alleging that I do not follow the instructions given. They then fell back to poor performance and started suggesting that I rather resign as termination based on disciplinary grounds will harm my reference.

 

The solicitor says that my manager and other team managers have lost trust and confidence in me. He has used this phrase "trust & Confidence" so many times during the conversation that I believe he will use breach of implied duty of Trust and Confidence to justify my termination.

 

 

That's when I would like to cite misdeeds of my manager, with evidences, as a bigger instances of loss of Trust & Confidence. I have got several emails from manager which show unnecessary criticism and bullying on emails.

 

I believe that in less than 2 years of service, its just that one cannot use implied duty of Trust & Confidence to bring about "Constructive Dismissal" .

 

 

However one can always show breach of implied duty of Trust & Confidence at any time, regardless of possible payout expectations. ( Don't know if the insurance will cover me for that ). But I don't think top notch employers want to see their reputation being tarnished in ET.

[Emmzzi]

. But I don't think top notch employers want to see their reputation being tarnished in ET.

 

They won't care. These tiny cases about individuals never mak the national papers and are really subjective in any case.

 

I'd say trust and confidence is gone on both sides and would bet they are indeed aiming for a fair dismissal on that basis.

[sangie5952]

I think it is apparent that it really doesn't matter what anyone says here, because you have decided on a course of action and you are going to attempt to pursue that regardless of any advice. So I am probably wasting my breath, but:

 

1. Anonymous "evidence" from colleagues is useless. You may as well write up the anonymous complaints yourself for all the good it will do. Why should anyone believe "evidence" that someone isn't prepared to put their name to?

 

2. What you believe about unfair dismissal really isn't relevant. The law says that with only a few exceptions, which do not apply here, you cannot bring a case before the employment tribunals unless you have two years service. Your belief otherwise is not going to change that.

 

3. The last resort of every "guilty" person is to bring a grievance after the disciplinary process begins. If you truly believe that your manager is doing wrong, the time to bring your complaint is BEFORE the manager takes any action, not after. Grievances made after the event are never believed by employers. And they don't buy you any time because the disciplinary can proceed regardless.

 

4. As Emmzzi had said, the media are not interested. You wouldn't even warrant a footnote in the local free paper.

 

5. Two or more managers from a single employer agreeing that you do not fit, for whatever reason, is not "collusion" - it's a very good reason why the employer will trust their judgement! One manager says it, and possibly, just possibly, the employer may be convinced. Two or more, and no employer is going to see that as anything other than the managers are correct.

 

6. With the best will in the world, what you consider " unnecessary criticism" is not the same thing as bullying. You are accusing your manager of purely subjective judgment based on their own agenda. But that is exactly what you are doing too!

 

Looking at reality here, you say that you have no trust and confidence in your manager. Your manager AND other managers are saying the same thing about you. That is an irreconcilable situation, and in any world would be accepted as fair grounds for dismissal. There is nowhere you can go with this - even if, and it is a huge if, the employer is inclined to say that you and your manager don't get on and can't work together, where are they going to move you to when the other managers are saying the same? What manager will want you or trust you?

 

What I am totally struggling to understand is what benefit you think there is in refusing point blank to consider finding a job that you would be happier in. Right now the manager will probably be happy to write you a glowing reference just to get rid of you without any fuss. Pretty soon a good reference won't be even a glimmer of hope. What is it that you think you will gain by hanging on to this job for as long as possible? Because even if you get to the two year mark, and even if you could construct some possible case and won that case, tribunals give out peanuts - and in many months time. If you are expecting one of those headline grabbing payouts, that won't happen. If you walk away with £5k you will be doing exceedingly well, because that is pretty much at the top of ladder of awards. And from that money will be deducted any unemployment benefits you have! Meanwhile, the word about you will have gotten out across any potential employer, and nobody is going to touch you with a bargepole.

 

Whatever you think this glamourous world of employment tribunals is, you are wrong. It is rough, it is nasty, it is time consuming, and it never pays out anywhere near the amount of money that people think it does. By leaving under your own steam, you will continue to be employed, have the chance to start over with no reputational damage, and will probably make more money in employment than you will ever see for the same amount of time from an employment tribunal. There is no downside to being another job and getting on with your life.

Edited December 7, 2016 by sangie5952
Paras.

[BazzaS]

I think it is apparent that it really doesn't matter what anyone says here, because you have decided on a course of action and you are going to attempt to pursue that regardless of any advice.

 

.......

 

Meanwhile, the word about you will have gotten out across any potential employer, and nobody is going to touch you with a bargepole.

 

Whatever you think this glamourous world of employment tribunals is, you are wrong. It is rough, it is nasty, it is time consuming, and it never pays out anywhere near the amount of money that people think it does. By leaving under your own steam, you will continue to be employed, have the chance to start over with no reputational damage, and will probably make more money in employment than you will ever see for the same amount of time from an employment tribunal. There is no downside to being another job and getting on with your life.

 

I absolutely agree. However, there is one problem:

 

But changing job is no no for me.

 

The OP has spoken.

 

Yet, when they 'run into the wall' of a dismissal that is neither wrongful nor unfair ...... "I'm not changing my job!" will sound somewhat hollow.

[sangie5952]

I absolutely agree. However, there is one problem:

 

 

 

The OP has spoken.

 

Yet, when they 'run into the wall' of a dismissal that is neither wrongful nor unfair ...... "I'm not changing my job!" will sound somewhat hollow.

 

Yes I understand that. But I did feel I had to give it one last go at appealing to rational thought. I have been in enough tribunals to know that even winning is very rarely the great feeling that people thought it would be. And the statistics for even good cases winning aren't great! So I just needed the OP to hear that, and if they then go on with this course, then the outcome is their own choice.

[landlor]

Sangie, Thanks for your inputs and your arguments do help me to tidy up some of my lose ends on this case.

 

Last come last, I can always claim breach of Trust and Confidence by employer, based on those nasty emails and misdeeds of my manager. When it would come to court, It will be the solicitor (representing the employer) and me. The employer will have to present evidence and not opinion of say some hundred managers. So far they have not been able to give any evidence. If only they had.

 

Also I am not going to move out to a new job just like that. I am not someone who can be browbeaten. If the employer had a strong case they would not have waited for over 11 weeks now. First informal without prejudice meeting was in third week of September

 

Even a months payout for me will be well over a five grands but as I said regardless of payout, Victory will be mine and the manager will lose face in the team. So even if there is no external publication, there will be internal, just like my manager has been doing about me.

[sangie5952]

Ah. That answers my question as to what you are getting out of this. It's not about the law, or fairness, or anything else. It is about revenge. And nothing else. And for those people with substantial employment law experience, we all know how well that always works out.

 

You are blinding yourself to the facts by a sense of revenge that had overtaken all rational thought.

 

For the last time. Without two years employment toy cannot make a claim of ANYTHING to the employment tribunal. That INCLUDES breach of trust and confidence. You can't claim. Full stop. End of explanation. There is simply not some magic method that allows you to do something that nobody else can do.

 

The opinions of managers, when it comes performance, IS evidence! You do not understand how a tribunal works. They don't look at your work and decide whether it is true that your performance isn't good enough. The employers opinion that it isn't is taken as true! The only thing they will look at is whether they have you a chance to improve. And they have. They told you your performance isn't good enough. They have got a chance to improve. And your response was to tell them that your performance is good enough! That will not wash with a tribunal. Performance dismissals, IF you get to two years, are all about process in tribunals - not at all about performance!

 

There is an old saying that when you go for revenge, first dig two graves. In your case, save yourself the effort and dig one. Your manager isn't going to need one. But I am sorry for you, because the grave you are digging yourself here is going to be bad. Your sector routinely trade information about employees. They have no tolerance for trouble makers. And they are small enough to know who the trouble makers are. They would never operate a blacklist, because that would be unlawful. Of course. You are simply stacking up a strong possibility you will never work in this sector again. Coincidentally.

 

I am all for a fight when there is a fight to be had. This one isn't to be had. Your expectations are being clouded by your desire for revenge against your manager. I realise you aren't going to stop. So all I can do now is tell you that it is in your own best interests to stop. This will not end well for you.

[BazzaS]

Your advice is correct for the OP's circumstances.

 

Just in case other people come across this thread, and they have different circumstances:

Under 2 years (continuous, applicable) employment some people CAN go to an employment tribunal for:

A) Unfair dismissal, provided the unfairness was based on a protected characteristic (not applicable for the OP),

B) Wrongful dismissal (so if they dismissed the OP and didn't pay them their notice [and if notice was due, so this doesn't apply for eg dismissal for gross misconduct])

 

Nothing for this OP suggests any dismissal will be unfair (from a protected characteristic), nor wrongful.

Dismissal for breach of trust and confidence, or poor performance, isn't wrongful if they pay for the notice period, and (as has been been pointed out numerous times), the lack of 2 years service prevents the unfair dismissal route.

 

OP says they are hoping to hang on in there until they have 2 years service.

OP stated in September that they had 1 year 3 months service.

 

Chances of them reaching June 2017 if the company wants them out? About the same of them getting to an employment tribunal (let alone succeeding at one!)

[sangie5952]

Yes I agree - I had covered the exceptions, as had others, earlier in the thread.

 

I'd put the odds at less than them getting to an employment tribunal... Sad really, because the dismissal will blight their chances at other jobs, and the truth is that at that stage it won't matter who was right - the reference will be "right". As a matter of interest, because I can't recall, do we know if this is a regulated role?

[honeybee13]

Yes I agree - I had covered the exceptions, as had others, earlier in the thread.

 

I'd put the odds at less than them getting to an employment tribunal... Sad really, because the dismissal will blight their chances at other jobs, and the truth is that at that stage it won't matter who was right - the reference will be "right". As a matter of interest, because I can't recall, do we know if this is a regulated role?

 

From memory, newlyn works in software development, Sangie.

 

HB

[landlor]

Hello All, I have this question. Given that my manager has told everyone about disciplinary motion against me, it makes difficult for me to defend my case as my colleagues are not ready to give statement since they know what it is meant for. So hasn't the manager vitiated the environment to my disadvantage.

[BazzaS]

Hello All, I have this question. Given that my manager has told everyone about disciplinary motion against me, it makes difficult for me to defend my case as my colleagues are not ready to give statement since they know what it is meant for.

 

What?. They'd have to be pretty obtuse to not work out what such a statement was for, anyhow. You can't make them give a statement.

You are grasping at straws again.

 

So hasn't the manager vitiated the environment to my disadvantage.

 

"vitiated the environment" ; Grasping at straws with a thesaurus is still grasping at straws.

[landlor]

its not about being obtuse. Even if they knew what such statement could be used for, they could still give and pretend ignorance. But now that the manager has told them and if they give now, there is no way they can avoid being on radar of manager. It does affect objectivity of the statement they could give. No?

[unclebulgaria67]

Manager has breached confidentiality expected of any disciplinary process.

 

If your job is still on the line, you should put in an official grievance ASAP. If you leave it too late, then they might conclude that your were not that aggrieved.

[BazzaS]

I don't disagree but the OP needs to be clear on their expectations

Manager gets disciplined for their wrongdoing : yes.

Manager getting disciplined preventing the OP's dismissal : no.

 

its not about being obtuse. Even if they knew what such statement could be used for, they could still give and pretend ignorance. But now that the manager has told them and if they give now, there is no way they can avoid being on radar of manager. It does affect objectivity of the statement they could give. No?

 

It remains an irrelevance.

 

You could have innumerable glowing citations from colleagues and they could still dismiss you due to the breakdown in mutual trust and confidence.

Unfair dismissal : no, it isn't from a protected characteristic, and you have under 2 years service.

Wrongful dismissal : "here is the pay for your notice period - it is no longer wrongful, there is the door".

 

This has been explained to you multiple times, and you ignore it. You haven't said why this is wrong or how you intend to get around this block that is fatal to an employment tribunal claim.

If the manager's discussion of why they felt your performance or attitude weren't adequate was met with the same stonewalling from your: little wonder they want you out!

[landlor]

I have already raised it with solicitor that the disciplinary process has been carried out in an inept manner. I have not pressed it though. I will raise a grievance soon.

 

Tell me one thing. If say they were to still dismiss me and mention this in reference, Can I challenge legally that the employer for hurting my career as they never gave me a fair trail by breaching confidentiality and vitiating the environment to my disadvantage.

 

In a disciplinary process, the manager will give his allegations and I give my defence. But if I have been preemptively handicapped by manager, then my trial is not fair. I am not after unfair dismissal but the wrongful dismissal.

 

I am okay if they just and plain terminate my employment and mention the same in reference but the employer is not ready to do that either and thats where my question is? If their termination is wrongful, then cannot say Dismissal in my reference. Can they?

[BazzaS]

All their reference has to state is the truth.

If the truth is that you were dismissed : it can state that.

You aren't entitled to a "fair trial"..... under 2 years you don't have the protection from unfair dismissal (as previously discussed!), only from wrongful dismissal (as previously discussed).

 

If you are being difficult : they don't have to give you a reference at all.

Or, they may choose to give you a reference saying "He worked here from to "

If they give you a reference stating "dismissed" : nothing you can do if that is an accurate statement.